26 Pa. Super. 569 | Pa. Super. Ct. | 1904
Opinion by
In prescribing the punishment, on conviction of crime, in the oyer and terminer and quarter sessions, our penal statutes direct, in some cases, simple “ imprisonment,” and in others, “separate or solitary confinement at labor.” The distinction between these penalties should receive careful attention in passing sentence.
As to the place of confinement, in some instances the county jail is specifically fixed by the statute prescribing the punishment ; in others, the penitentiary, or the state prison. As a
Section 111 of the penal code of 1860, P. L. 382, under which the appellant was convicted, prescribes, as the penalty, a fine not exceeding $500 and an imprisonment not exceeding three years. Therefore the punishment is simple imprisonment, and
Penal statutes are to be strictly construed, and upon a conviction tire sentence must be that which the statute prescribes. A sentence to a different penalty, especially a more severe one, is erroneous. Separate or solitary confinement at labor, in the penitentiary, is not only different in character from imprisonment in the county jail, but is a more severe punishment. Hence the sentence was erroneous, both in the character of the imprisonment and the place of confinement. The error may be corrected here by reversing the judgment and remitting the record for a sentence in conformity with the statute ; or this court may modify the judgment by passing the sentence which the court below should have passed: Beale v. Com., 25 Pa. 11; Pittsburg, etc., Railway Company v. Com., 101 Pa. 192; Clellans v. Com., 8 Pa. 223. In the case last cited, the Supreme Court reversed the judgment and discharged the prisoners, saying : “ As the prisoners have been confined in the eastern penitentiary about three fourths of a year, we deem this as severe a punishment as if they had been confined in the county jail, where they legitimately should have been sent, for two years.” Here the prisoner has been confined in the penitentiary about eleven months, on a sentence of a year and a half. By the test indicated in Clellans v. Com., this is more than equivalent in severity to imprisonment in the county jail for two years, and we regard it as a fully adequate punishment for the offense.
The judgment is reversed, and it is ordered that the prisoner be discharged.